COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Fitzpatrick and Annunziata 

Argued at Richmond, Virginia 

KENDALL ORLANDO WOODSON 

 OPINION BY 

v. Record No. 3040-96-2 JUDGE JOHANNA L. FITZPATRICK 

 OCTOBER 14, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Donald W. Lemons, Judge 

 Jonathan David (Joseph D. Morrissey; 

Morrissey, Hershner & Jacobs, on brief), for 

appellant. 

 Daniel J. Munroe, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Kendall Orlando Woodson (appellant) was found guilty in a 

bench trial of possession of cocaine with intent to distribute in 

violation of Code § 18.2-248. On appeal, he argues that the 

trial court erred in: (1) finding he had no standing to assert a 

Fourth Amendment violation; and (2) upholding a "no-knock" entry 

and search. We find no error; therefore, we affirm the 

conviction. 

I. Background 

 On January 10, 1996, Richmond police officers executed a 

search warrant on a subsidized apartment at 1406-A Jennie Scher 

Road. The apartment was leased to appellant's sister, and only 

she and her child were authorized to live there. Appellant was 

inside the apartment at the time of the search even though the 

apartment manager, Donna Pritt, had previously notified him by 
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certified mail that he was barred from the apartment complex. 

Appellant had been arrested several times for trespass on the 

premises, and he was convicted once. A certified copy of 

appellant's trespass conviction, showing his status as barred 

from the property, was admitted into evidence. Additionally, 

Richmond Police Officer William Burnett testified that he told 

appellant the day before the search that he was banned from the 

property. Appellant testified that he lived at the apartment 

with his sister; however, he admitted his name was not on the 

lease, he paid no rent, and he knew he was not authorized to live 

there. 

 Prior to the execution of the search warrant, the police 

knew that appellant was in the apartment. The police had reports 

from Ms. Pritt, a citizen informant, and from Robert Hershey, the 

maintenance supervisor, that they had recently observed guns, 

ammunition, and police scanners in the apartment. Officer 

Burnett had personal knowledge of appellant's earlier arrest for 

possession of a concealed weapon, possession of a stolen handgun, 

assaulting a police officer, and that cocaine was being sold from 

the apartment. 

 On July 12, 1996, a hearing was held on appellant's motion 

to suppress. Appellant argued that the police violated his 

Fourth Amendment rights by failing to knock and announce their 

presence before entering the premises. The Commonwealth argued 

that the police action was justified and that appellant lacked 
 3 

standing to assert a sufficient privacy interest to contest the 

introduction of the evidence seized. At the conclusion of the 

hearing, the trial court denied appellant's motion and found as 

follows: "the officers had the exigent circumstances that 

support a no-knock entry under the circumstances of this case, 

given the totality of the circumstances." The court found that 

the officers had reasonable belief that: 

 1. There were guns and ammunition in the 

apartment; 

 2. There were police frequency scanners in 

the apartment capable of intercepting police 

communications; 

 3. Woodson was engaged in the sale of 

cocaine from the apartment; 

 4. Woodson had previous arrests for cocaine 

possession, firearms violations, carrying a 

concealed weapon and assaulting a police 

officer; 

 5. Woodson was a trespasser on the 

premises. 

Accordingly, the trial court concluded as follows: 

 The combination of drug distribution 

activity, guns, ammunition, police scanners 

capable of monitoring police activity and the 

specific awareness of the defendant's prior 

assault upon a police officer present exigent 

circumstances that justify the "no knock" 

execution of the search warrant in this case. 

Additionally, the trial court found that the appellant "was a 

trespasser on the premises, . . . consequently [he] cannot 

maintain any reasonable privacy interest in the premises 

sufficient to sustain his motion to suppress." Appellant was 

convicted of possession of cocaine with the intent to distribute. 

 In reviewing the trial court's ruling on the motion to 
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suppress, we assess the evidence in the light most favorable to 

the Commonwealth, the prevailing party below, and we will disturb 

the trial court's decision only if it is plainly wrong. See

Spivey v. Commonwealth, 23 Va. App. 715, 721, 479 S.E.2d 543, 546 

(1997). To prevail on appeal, appellant must demonstrate that 

the court's denial of his motion constituted reversible error. 

Id. (citations omitted). 

 Our consideration of the record includes evidence adduced at 

both the trial and the suppression hearing. See id. While we 

are bound to review de novo the ultimate questions of law, we 

"review findings of historical fact only for clear error and 

. . . give due weight to inferences drawn from those facts by 

resident judges and local law enforcement officers." Ornelas v. 

United States, 517 U.S. ___, ___, 116 S. Ct. 1657, 1663 (1996). 

"An appeals court should give due weight to a trial court's 

finding that the officer was credible and the inference was 

reasonable." Id.

II. Standing 

 Appellant argues that he has standing to assert Fourth 

Amendment rights in his sister's apartment because he was her 

guest. We hold that appellant was not lawfully on the premises 

and that, as a trespasser, he lacks the privacy interest 

necessary to claim a Fourth Amendment violation. 

 An appellant has the burden of proving that he has standing 

to allege a violation of his Fourth Amendment rights. McCoy v. 
 5 

Commonwealth, 2 Va. App. 309, 311, 343 S.E.2d 383, 384 (1986). 

"The test is whether the appellant objectively had a reasonable 

expectation of privacy at the time and place of the disputed 

search." Id. at 311, 343 S.E.2d at 385. In applying this test, 

we must look at the totality of the circumstances. Id. In 

Josephs v. Commonwealth, 10 Va. App. 87, 94-95, 390 S.E.2d 491, 

495 (1990) (quoting United States v. Haydel, 649 F.2d 1152, 1155 

(5th Cir. 1981), cert. denied, 455 U.S. 1022 (1982)), we held 

that: 

 "[F]actors to be weighed include whether the 

defendant has a possessory interest in the 

thing seized or the place searched, whether 

he has the right to exclude others from that 

place, whether he has exhibited a subjective 

expectation that it would remain free from 

governmental invasion, whether he took normal 

precautions to maintain his privacy and 

whether he was legitimately on the premises." 

 Trespassers do not have privacy interests sufficient to 

invoke Fourth Amendment protection. A defendant with "an 

illegitimate, wrongful, and unreasonable expectation of privacy

in [a] stolen vehicle . . . lacks standing to object." Josephs, 

10 Va. App. at 98, 390 S.E.2d at 497 (emphasis added). Other 

state and federal courts have held that defendants may not 

protest the search of a stolen vehicle. See, e.g., United States

v. Hensel, 672 F.2d 578 (6th Cir. 1982), cert. denied, 457 U.S. 

1107 (1982); United States v. Hargrove, 647 F.2d 411 

(4th Cir. 1981); State v. Schad, 633 P.2d 366 (Ariz. 1981), cert.

denied, 455 U.S. 983 (1982); State v. Abordo, 596 P.2d 773 (Haw. 
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1979). In each of these cases, the defendant's illegal presence 

in the location searched deprived him of an objectively 

reasonable expectation of privacy. 

 This rationale has also been applied to defendants who are 

wrongfully on real property and who thus have no reasonable 

expectation of privacy and cannot protest a search. See United 

States v. Ruckman, 806 F.2d 1471 (10th Cir. 1986) (defendant had 

no reasonable expectation of privacy in a cave on federal land 

when authorities could force him to leave at any time); Amezquita 

v. Colon, 518 F.2d 8 (1st Cir. 1975), cert. denied, 424 U.S. 916 

(1976) (Puerto Rican squatters' claim to a privacy interest in 

Commonwealth land was "ludicrous" because they had twice been 

asked to vacate the property); G.R. v. State, 638 P.2d 191 

(Alaska Ct. App. 1981) (occupants of a cabin who were there 

without the owner's consent had no expectation of privacy in the 

building); State v. Cruz, 809 P.2d 1233 (Kan. App. 1991) 

(trespassers in a home had no expectation of privacy in the 

home); People v. Sumlin, 431 N.Y.S.2d 967 (N.Y. Sup. Ct. 1980) 

(defendant was wrongfully in an abandoned city building at the 

time of the search and could not protest); State v. Turnbill, 640 

S.W.2d 40 (Tenn. Crim. App. 1982) (defendant, who had returned to 

a rescue mission after being ejected, had no legitimate 

expectation of privacy in the mission room); Douglas v. State, 

695 S.W.2d 817, 820 (Tex. Ct. App. 1985) (burglar who hid in a 

vacant building without permission was "a trespasser [who] had no 
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reasonable expectation of privacy in the premises"). 

 In this case, appellant was a trespasser who had no 

objectively reasonable expectation of privacy in his sister's 

apartment. He was not an authorized resident of the subsidized 

apartment. He had been banned from the premises by both the 

property manager and a court order. He had been convicted of 

trespassing on the same premises. The day before the search, a 

police officer told him that he was not allowed on the property. 

 Additionally, appellant admitted he had been living there 

"illegally." Thus, he had no reasonable expectation of privacy, 

objective or otherwise, in the apartment. Appellant has no 

standing to claim the protection of the Fourth Amendment. 

 Appellant argues that while trespassers may not have 

sufficient privacy interests to invoke the Fourth Amendment, he 

was not a trespasser because he occupied the property with the 

permission of a rightful possessor of the property. Appellant's 

sister was a lawful occupant of the apartment who, he alleges, 

could give valid consent for a search, and appellant claims that 

as her guest he "can impute to himself the wrong done to her by 

the illegal search." 

 We find no merit in this argument. While appellant's sister 

may have given him permission to live in the apartment, the 

permission of an occupant is only one factor to be considered 

when determining whether appellant had an objectively reasonable 

expectation of privacy. The record establishes that appellant 
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was on notice that he was a trespasser and barred from the 

premises. His experience with the apartment, including his 

conviction for trespassing, and Officer Burnett's warning the day 

before the execution of the search warrant, clearly outweighs the 

fact that his sister allowed him to reside there illegally. 

Consequently, under the facts of this case, we reject appellant's 

argument that he had a reasonable expectation of privacy in the 

premises searched, and we hold that the trial court properly 

denied appellant's motion to suppress.1

 

 Affirmed.

 

 1Our holding on the standing issue renders moot appellant's 

second contention that the police were required to knock and 

announce their presence before entry. However, the record 

clearly established the requisite exigent circumstances.